FCC Record, Volume 26, No. 19, Pages 14991 to 15893, October 24 - November 10, 2011 Page: 15,075
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A. The Competing Provider Test
3. Section 623(l)(1)(B) of the Communications Act provides that a cable operator is subject
to effective competition if the franchise area is (a) served by at least two unaffiliated multi-channel video
programming distributors ("M VPDs") each of which offers comparable video programming to at least 50
percent of the households in the franchise area; and (b) the number of households subscribing to
programming services offered by MVPDs other than the largest MVPD exceeds 15 percent of the
households in the franchise area.x This test is referred to as the "competing provider" test.
4. The first prong of this test has three elements: the franchise area must be "served by" at
least two unaffiliated MVPDs who offer "comparable programming" to at least "50 percent" of the
households in the franchise area." It is undisputed that the Attachment A Communities are "served by"
both DBS providers, DIRECTV and DISH, and that these two MVPD providers are unaffiliated with
Petitioner or with each other. A franchise area is considered "served by" an MVPD if that MVPD's
service is both technically and actually available in the franchise area. DBS service is presumed to be
technically available due to its nationwide satellite footprint, and presumed to be actually available if
households in the franchise area are made reasonably aware of the service's availability.'" The
Commission has held that a party may use evidence of penetration rates in the franchise area (the second
prong of the competing provider test discussed below) coupled with the ubiquity of DBS services to show
that consumers are reasonably aware of the availability of DBS service." We further find that Petitioner
has provided sufficient evidence to support its assertion that potential customers in those Communities
are reasonably aware that they may purchase the service of these MVPD providers.'2 The "comparable
programming" element is met if a competing MVPD provider offers at least 12 channels of video
programming, including at least one channel of nonbroadcast service programming,' and is supported in
this petition with citations to the channel lineups for both DIRECTV and DISH.'4 Also undisputed is
Petitioner's assertion that both DIRECTV and DISH offer service to at least "50 percent" of the
households in the Attachment A Communities because of their national satellite footprint.'" Accordingly,
we find that the first prong of the competing provider test is satisfied.
5. The second prong of the competing provider test requires that the number of households
subscribing to MVPDs, other than the largest MVPD, exceed 15 percent of the households in a franchise
area. Petitioner asserts that it is the largest MVPD in the Attachment A Communities.'" Petitioner sought
to determine the competing provider penetration there by obtaining AT&T subscriber numbers for each
Attachment A Community directly from that company and by purchasing a subscriber tracking report
from the Satellite Broadcasting and Communications Association that identified the number of
subscribers attributable to the DBS providers within the Attachment A Communities on a zip code plus
47 U.S.C. 543(1)(1)(B); see aIvo 47 C.F.R. 76.905(b)(2).
47 C.F.R. 76.905(b)(2)(i)
See Petition at 3-5.
Mediacom I//linois LLC. 21 FCC Red 1175, 1176, 3 (2006).
47 C.F.R. 76 905(c)(2).
nSee 47 C .F.R. 76.905(g); SLee also Petition at 5.
'1 See Petition at 4 n. 12: u at 6.
" See id at 6.
"' See Petition at 7; Declaration of Thomas Aguillon, lnce Warner's Director of (;overnment Relations - San Antonio
at f 3 (Aug. 8, 2011 ).
Federal Communications Commission
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United States. Federal Communications Commission. FCC Record, Volume 26, No. 19, Pages 14991 to 15893, October 24 - November 10, 2011, book, November 2011; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc133013/m1/99/: accessed December 18, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.